This copy is for your personal non-commercial use only. To order presentation-ready copies of Toronto Star content for distribution to colleagues, clients or customers, or inquire about permissions/licensing, please go to: www.TorontoStarReprints.com

On Saturday, U.S. President Donald Trump tweeted that he’d fired Flynn because he lied to the FBI. According to legal experts, that admission could help prosecutors build an obstruction of justice case that Trump was acting “corruptly” when he urged the FBI to drop its probe of Flynn, Daniel Dale writes.

U.S. President Donald Trump speaks with media on Saturday before boarding Marine One in Washington. Trump tweeted Saturday: "I had to fire General Flynn because he lied to the Vice President and the FBI. He has pled guilty to those lies." (JOSE LUIS MAGANA / AFP/GETTY IMAGES)

The day after his former national security adviser, Michael Flynn, pleaded guilty to lying to the FBI about his communications with Russia, Trump decided, against the advice of his aides, to discuss the subject on Twitter.

The tweet was not a good idea.

Experts at Harvard University, Stanford University, Yale University, Duke University and the University of Texas told the Star that Trump’s words would help special counsel Robert Mueller establish a case that Trump committed obstruction of justice.

Article Continued Below

Trump wrote: “I had to fire General Flynn because he lied to the Vice President and the FBI. He has pled guilty to those lies. It is a shame because his actions during the transition were lawful. There was nothing to hide!”

The tweet contained what appeared to be a major admission. For the first time, Trump said he was aware that Flynn had committed a crime, lying to the FBI, when he fired him in February, rather than merely knowing Flynn had lied to Vice-President Mike Pence.

That is important because, the day after Flynn’s departure, Trump urged FBI director James Comey to drop the investigation into Flynn.

A central component of the crime of obstruction of justice is that the attempt to interfere with a proceeding is done “corruptly.”

Before Trump’s tweet, it would have been easier for his lawyers to argue that he had asked Comey to desist simply because he did not think Flynn had done anything wrong, or because Flynn was a buddy.

The tweet, all five experts said, helps to establish his corrupt purpose — an attempt to protect an ally he knew had done something illegal.

Alex Whiting, a Harvard law professor, said on Twitter that the situation feels a “lot like obstruction.”

“The question of whether Trump committed obstruction of justice when he asked Comey to drop the investigation on Valentine’s Day will largely turn on Trump’s intent: was he just trying to put in a good word for Flynn, or was he in fact trying to end a criminal investigation?” Whiting said in an email. “If he genuinely believed that Flynn did nothing wrong, that tends to support the former interpretation. But if, as he now admits, he knew that Flynn had lied to the FBI, a federal crime, then he knew that by asking Comey to drop the investigation, he was seeking to end a meritorious criminal investigation.”

“He is requesting something of the director of the FBI knowing that he is, in doing so, interfering with the investigation of a federal crime,” said Lisa Kern Griffin, a Duke law professor.

“I don’t think the tweet, profoundly misguided though it may have been, is itself proof of obstruction of justice,” said Texas law professor Stephen Vladeck. “But, it may very well establish the timeline of what Trump knew when, which would be a necessary part of any obstruction charge. So it’s not quite a smoking gun, but it certainly doesn’t do the president any favours.”

Trump’s tweets are frequently inaccurate. Asha Rangappa, a former FBI agent and former associate dean at Yale Law School, said the tweet helps the obstruction case, but she added that Mueller will have to find further evidence showing that Trump knew what he claimed in the tweet to have known.

Flynn, who has agreed to co-operate with Mueller, could fill in the gaps, Rangappa said.

“Mueller’s not going to march into court with that tweet as his proof. The question is: does that tweet actually reflect what may have in fact been true at the time?” said Rangappa, now a senior lecturer at Yale’s Jackson Institute for Global Affairs. “And if it was true that Trump had knowledge of any illegal activities of Flynn, whether it’s lying to the FBI or anything else, and subsequently attempted to have the investigation dropped, then that’s a problem for him.”

David Sklansky, a law professor at Stanford, said there was “plenty” of evidence for corrupt intent even before the tweet, which he said “strengthens the argument.” Trump, Sklansky noted, made sure to usher everyone else out of the Oval Office before raising the subject with Comey, according to Comey’s testimony.

At minimum, the tweet suggests that Trump deceived voters. At a February news conference, the president made no mention of Flynn lying to the FBI, saying: “I fired him because of what he said to Mike Pence. Very simple.” Other administration officials made similar declarations.

“This is further evidence that there was ongoing deception and orchestrated deception of the American public from the middle of January into the middle of February,” Sklansky said.

A finding from Mueller that Trump has committed obstruction would not necessarily lead to the president’s impeachment by the House or ultimate removal by the Senate.

Constitutional scholars largely believe a sitting president cannot face criminal prosecution. So it is only Congress, currently controlled by Republicans, that would serve as Trump’s judge and jury.

Impeachment cases can be brought for treason, bribery and “other high crimes and misdemeanours.” There is no consensus on what “high crimes and misdemeanours” are, and some Republicans have argued that obstruction is insufficient.

Some conservative legal scholars have also argued that a president is constitutionally entitled to tell the FBI director whatever he wants, even about a criminal investigation affecting himself.

The Toronto Star and thestar.com, each property of Toronto Star Newspapers Limited, One Yonge Street, 4th Floor, Toronto, ON, M5E 1E6. You can unsubscribe at any time. Please contact us or see our privacy policy for more information.

More from the Toronto Star & Partners

LOADING

Copyright owned or licensed by Toronto Star Newspapers Limited. All rights reserved. Republication or distribution of this content is expressly prohibited without the prior written consent of Toronto Star Newspapers Limited and/or its licensors. To order copies of Toronto Star articles, please go to: www.TorontoStarReprints.com